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In Adegbuji v Meteor Parking Ltd the EAT has held that an appellant could not call fresh evidence on appeal as he was unable to show that he could not, with reasonable diligence, have called this evidence at the tribunal. The EAT stated that where a party seeks to rely on fresh evidence, he or she should apply for a review by the tribunal rather than appeal its decision. Appeals made to the EAT on the basis of fresh evidence should be stayed pending a review application to the employment tribunal.
A brought claims of unfair dismissal, breach of contract, and race discrimination, among other things, against MP Ltd. MP Ltd contended that the tribunal had no jurisdiction to hear some of A's claims as no grievance had been raised in respect of them, as previously required by S.32 of the Employment Act 2002. At a pre-hearing review, A asserted that he had given his supervisor, K, a grievance to pass to management. A's application for an order requiring K to attend, made at the hearing itself, was rejected. The tribunal preferred MP Ltd's evidence that no grievance was received and dismissed the claims. A lodged an appeal, seeking to introduce fresh evidence in the form of a witness statement from K. After his notice of appeal was held on the sift to disclose no reasonable grounds, A requested an oral hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993.
The EAT dismissed the appeal. A was not able to show that he could not have adduced K's evidence sooner, as required by the Ladd v Marshall principles on admitting fresh evidence. Although A stated that MP Ltd had not replied to his request for K's contact details before the hearing, this was not enough to show he had done all he could to secure K's appearance. A had previously applied for an order for disclosure and there was no reason why he could not have applied for a witness order at the same time, rather than waiting until the hearing itself. The employment judge had chosen between two witnesses' contradictory evidence and found in favour of MP Ltd. This was a finding of fact that could not be challenged on appeal.
In the course of his judgment, Mr Justice Underhill, President of the EAT, commented on the appropriate procedure for challenging a tribunal's decision on the basis of fresh evidence. The correct course will, almost always, be to apply to the tribunal for a review under rule 34(3)(d) of the Employment Tribunal Rules of Procedure. A tribunal is normally better placed than the EAT to deal with the second and third Ladd v Marshall questions, i.e. whether the evidence is credible and whether it is likely to have an influence on the outcome. Although time limits are tighter for an application for review than for an appeal, it would not normally be just to refuse to grant an extension of time in a genuine fresh evidence case. Furthermore, where the fresh evidence issue stands alone, or is easily separable, it should be common practice for any appeal to be stayed pending the results of a review application in the tribunal.
The case will be reported in full in IDS Employment Law Brief.
Source: EAT 7/6/2010
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